Complementary protection
Statutory definition
Section 36(2)(aa) of the Migration Act 1958 (Cth) provides that a criterion for a protection visa is that the Minister is satisfied that Australia has protection obligations to the non-citizen because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
Section 36(2A) defines significant harm to include arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.
Explanation
Complementary protection was introduced into Australian law in 2012 to codify obligations arising from the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) — treaties that impose non-refoulement obligations not captured by the Refugee Convention.
A person who is not a refugee under s 36(2)(a) may still satisfy the protection visa criterion under s 36(2)(aa) if there is a real risk of significant harm on return. The test requires the harm to be a necessary and foreseeable consequence of removal, not merely a possibility.
How this term is used
Complementary protection claims are assessed in the same protection visa application process as refugee claims. If the primary (refugee) claim fails, the complementary protection claim is assessed as an alternative basis. A positive complementary protection finding results in grant of a protection visa (permanent Subclass 866 for onshore applicants, or a TPV/SHEV for UMAs).